Whaley v. Bartlett

Citations

• 42 S.C. 454
• 20 S.E. 745
• 1894 S.C. LEXIS 72

Syllabus

<p>1. Grounds for Nonsuit — Appeal.—This court is not bound to consider exceptions alleging specific errors in an order refusing a motion for nonsuit, where the “Case” does not disclose the grounds upon which the motion was based and refused. The proper practice indicated.</p> <p>2. A Nonsuit cannot be ordered where there is any evidence tending to prove the plaintiff’s cause of action ; the trial judge cannot pass upon its sufficiency or weight. There being some evidence in this case to support plaintiff’s complaint, that he was injured by the carelessness or negligence of defendant’s representative in failing to use proper appliances, and to provide the necessary number of laborers, a nonsuit was properly refused.</p> <p>3. Ibid. — Contributory Negligence. — The question of contributory negligence is a matter of fact to be passed upon by the jury, and cannot be considered by the judge on a motion for non-suit.</p> <p>4. Ibid. — Fellow-Servants.—Whether the accident resulted from the act of plaintiff’s fellow-laborers in too soon quitting their hold of the weight whose fall produced the injury, was a question of fact for the jury and not for the judge; and, besides, the evidence was, that they did not let go until their own safety required them to do so.</p> <p>5. Negligence — Master and Servant: — Where the injury is negligently done by a representative, “the foreman,” of the master, it is the act of the master himself, and it is then immaterial whether the foreman and men were habitually negligent, or the master knew, or had reason to suspect, that they would be negligent.</p> <p>6. Negligence — Assumed Risks — Nonsuit.—Whether the risk was ordinarily incident to plaintiff’s employment, and a patent risk, was a question of fact not determinable on motion for nonsuit. The plaintiff in this case might well assume that the man sent from Baltimore to Charleston to superintend the work understood how to do it with safety to the laborers.</p> <p>Í. New Trial — Appeal—E